A.K.O. INC. SOFTWARE LICENSE AGREEMENT AND LIMITED WARRANTY

BY INSTALLING AND USING A.K.O. INC. SOFTWARE, REFERRED TO IN THIS AGREEMENT AS THE SOFTWARE, YOU, AS THE END USER, ARE EXPRESSING YOUR CONSENT TO THE TERMS AND CONDITIONS OF THIS A.K.O. INC. SOFTWARE LICENSE AGREEMENT AND WARRANTY, OR THE AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THESE TERMS AND CONDITIONS, DO NOT USE THE SOFTWARE.

LICENSE GRANT: A.K.O. Inc. (“AKO”) grants to you, the End User(“End User”), a non-exclusive, non-transferable license to use the purchased software (“Software”), the instructions that come with the software (“Manual”), in the manner and subject to the restrictions described below under the provision labelled SCOPE OF LICENSE GRANT. Buying agents are not licensed to use the Software. The license grant extends to the current version of the Software and the Manual, and all Maintenance Releases and other updates provided to End User as noted below under the provision labeled MAINTENANCE RELEASES. This agreement and the license grant provided is effective as of the earlier date you downloaded the Software or the date on which we ship to you the physical media that includes the object code to the Software. This date is referred to in this agreement as the Effective Date.

SCOPE OF LICENSE GRANT:

You, as the End User, may, consistent with the number of licenses purchased by End User under the relevant PO or quotation:

Use the Software on a single computer or workstation (the “Designated Controller”) in your facilities or premises for your internal business purposes, but only for use with the AKO products;
Use the Software on the Designated Controller for your internal business purposes; provided that a license for each copy of the Software has been purchased for each person permitted to access the Software; and
Make one copy of the Software solely for archival purposes; provided that any copy must contain all of the original Software’s proprietary notices.
Collectively, Provisions A-C of the SCOPE of LICENSE GRANT will be referred to throughout the AKO Software and License Agreement as “Permitted Uses”.

You may not:

Use the Software for any reason other than Permitted Uses;
Modify, translate, reverse engineer, de-compile, disassemble (except and solely to the extent an applicable statute expressly and specifically prohibits such restrictions), or create derivative works based on the Software;
Permit other individuals or organizations to use the Software or copy the Software, other than as specified above;
Rent, lease, sublicense, grant a security interest in, or otherwise transfer rights to the Software; or
Remove any proprietary notices or labels on the Software.

LIMITED WARRANTY: AKO warrants that during the Term, the Software will substantially conform to the features and functionality described within the Manual provided with the Software or equipment. AKO does not warrant, however, that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. A.K.O. also warrants that if you received the Software on physical media, the media will be, for one year after delivery, materially free from defects in material and workmanship.

This limited warranty will not apply to problems arising out of or relating to:

Software, or the media on which it is provided, that is modified or damaged by End User;
any operation or use of, or other activity relating to, the Software other than as specified in the Documentation, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system or network, or any version of any such item) or service not specified as being compatible with the Software or for use in combination with the Software in the Documentation;
End User’s or any third party’s negligence, abuse, misapplication or misuse of the Software, including any use of the Software other than as specified in the Manual;
End User’s failure to promptly install all Maintenance Releases that AKO has previously made available to End User;
the operation of, or access to, End User’s or a third party’s system or network;
End User’s or any third party’s breach of any provision of this Agreement; or
any other circumstances or causes outside of the reasonable control of AKO (including abnormal physical or electrical stress).

AKO’s sole liability and End User’s exclusive remedy for any breach of these warranties, will be, at the option of AKO: (i) to replace the defective media; (ii) to repair the defective Software or replace it with Software that conforms; or (ii) to advise you how to achieve substantially the same features or functionality with the Software as described in the Manual through a procedure different from that set forth in the Manual; or (iii) if the above remedies are impracticable, to refund the unearned portion of the license fee you paid for the Software; and in each case, will use reasonable efforts to do so within thirty (30) days of being so notified.

EXCEPT AS NOTED UNDER THIS PROVISION, A.K.O. MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS.

MAINTENANCE RELEASES: During the Term, AKO will provide End User with all Maintenance Releases (including updates to the Manual) that AKO may, in its sole discretion, make generally available to its licensees at no additional charge. Updates will be provided through physical media or through a download link. All Maintenance Releases, upon delivery, are deemed to be a part of the Software subject to all applicable terms and conditions in this Agreement. End User will install all Maintenance Releases as soon as practicable after receipt. End User does not have any rights to receive any new versions of the Software that AKO may, in its sole discretion, release from time to time. For the purpose of this agreement, a Maintenance Release refers to any update, upgrade, release or other adaptation or modification of the Software, including any updates to the Manual, that AKO may provide generally to its licensees from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software, but does not include any new version of the Software that AKO may from time to time introduce and market generally as a distinct licensed product, and which AKO may make available generally to its licensees for an additional cost.

TITLE and CONFIDENTIALITY: Title, ownership rights, and intellectual property rights in the Software shall remain in AKO, its licensors and/or its suppliers. The Software is protected by copyright and other intellectual property laws and by international treaties. You acknowledge AKO’s representation that the Software and the Manual contains trade secret or proprietary information of AKO or its suppliers, and you agree not to disclose it to any third parties using the same degree of care as with its own materials of a similar nature. You shall permit AKO from time to time to audit compliance with the terms and conditions of this agreement in a manner that does not interfere in any material respects with its normal business operations.

SECURITY: The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. AKO may (a) use these and other lawful measures to verify End User’s compliance with the terms of this Agreement and enforce AKO’s rights in and to the Software; (b) deny any access to the Software if AKO, in its discretion, believes that use of the Software would violate any provision of this Agreement or if the Term has expired or been terminated; and (c) collect, maintain, process and use diagnostic, technical, usage and related information, including information about End User’s computers, systems and software, that AKO may gather periodically to improve the performance of the Software or develop Maintenance Releases.

TERMINATION or EXPIRATION: Either party may terminate this agreement for any failure by the other party to comply with its obligations under this agreement that are not remedied within thirty days of written notice (a Breach) or a party’s ceasing to do business or becoming bankrupt. AKO may terminate this agreement for any failure of End User or buying agent to pay when due any fees related to the Software. If End User or an End User’s buying agent terminates this agreement for a Breach by AKO, AKO shall refund End User an amount equal to a pro-rated portion of the license fees paid by End User or buying agent for the Software relating to the balance of the then-current Term or Renewal Term. Upon any termination or expiration of the Term for any reason, End User shall immediately cease use of the Software, and within ten days of termination, destroy all copies of the Software and Manual in its possession or control. End User’s obligation of non-disclosure will continue after termination.

INDEMNITY: AKO, at its own expense, shall indemnify End User or End User’s buying agent from and against any action brought against End User or its buying agent to the extent that such action is solely based on a claim that the Software, when used in accordance with this Agreement, infringes any U.S. patent, or any copyright or trade secret rights of any third party and AKO shall pay all costs, settlements and damages finally awarded, provided: (a) End User or its buying agent grants AKO sole control of the defense and/or settlement of such claim or suit; (b) End User or its buying agent notifies AKO promptly in writing of each such claim or suit and shall give AKO all relevant information known to the End User or its buying agent; and (c) End User or its buying agent cooperates with any reasonable request of AKO in the settlement or defense of any such claim or suit. The End User or its buying agent shall be reimbursed for all reasonable expenses incurred in providing any cooperation requested by AKO.

If all or any part of the Software is, or in the opinion of AKO may become, the subject of any claim or suit for infringement of any third party rights, AKO may, and in the event of any adjudication that the Software or any part of the Software does infringe, or if the use of the Software or any part of it is enjoined, AKO may, at its expense and discretion do one of the following things: (w) procure for the End User the right to use the Software or the affected part of the Software; (x) replace the Software or the affected part of the Software with other Software providing substantially similar functionality; (y) modify the Software or the affected part of the Software to make it non-infringing; or (z) if none of the foregoing remedies are commercially feasible, refund End User an amount equal to a pro-rated portion of the license fees paid by End User for the Software relating to the balance of the then-current Term or Renewal Term.

AKO shall have no obligation to indemnify End User or its buying agent to the extent that a claim is based upon:

a patent issued on a patent application published in the US after the Effective Date;
incorporation by the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by AKO or specified for End User’s use in the Manual;
modification of the Software other than by AKO in connection with this agreement;
failure to timely implement any Maintenance Release, or other modification, update or replacement of the Software made available to End User by AKO;
use of the Software after AKO’s notice to End Use of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights;
negligence, abuse, misapplication or misuse of the Software or Manual by or on behalf of End User, its buying agent, or a third party; or
use of the Software or Manual by or on behalf of End User that is outside the Permitted Uses or use authorized by this Agreement or in any manner contrary to AKO’s instructions.

This provision sets out End User and any buying agent’s sole remedies and AKO’s sole liability and obligation for any actual, threatened or alleged claims that the Software or the Manual infringes, misappropriates or otherwise violates any intellectual property rights of any third party.

ASSIGNMENT: End Users may not assign this agreement or any of its rights or obligations under this agreement, without the prior written consent of AKO.

EXPORT CONTROLS: None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.

WAIVER OF CONSEQUENTIAL DAMAGES and LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY OR OTHERWISE) WILL A.K.O., ITS LICENSORS, OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON (A) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR INJURY TO EARNINGS, PROFITS, OR GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES; (B) FOR ANY LOSSES CAUSED BY COMPUTER VIRUS, RANSOMWARE, MALWARE, FAILURE TO UPDATE OPERATING SYSTEM OR OTHER SOFTWARE, COMMUNICATION LINE FAILURE, DELAYS IN TRANSMISSION, ANY UNAUTHORIZED ACCESS, ANY LOST, DELETED, OR INACCESSIBLE DATA; (C) FOR ANY MODIFICATIONS TO THE SOFTWARE BY ANYONE OTHER THAN AKO, OR ANY MISUSE, NEGLECT, OR VANDALISM TO THE SOFTWARE; OR (D) FOR ANY DAMAGES IN EXCESS OF THE AMOUNT AKO RECEIVED FROM YOU FOR A LICENSE TO THE SOFTWARE, EVEN IF AKO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. THIS WAIVER AND LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM AKO’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NOR WILL IT LIMIT AKO’S OBLIGATIONS UNDER THE INDEMNITY PROVISIONS OF THE AGREEMENT.

MISCELLANEOUS: This agreement, together with the AKO quote, AKO’s Standard Terms and Conditions, AKO’s Limited Hardware Warranty, and AKO’s Limited Product Warranty represent the complete agreement concerning the license granted may be amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS IN THIS AGREEMENT AND AKO’S STANDARD TERMS AND CONDITIONS, AND NOT THOSE IN YOUR PURCHASE ORDER. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.

U.S. GOVERNMENT END USERS: The Software and the Manual are “commercial computer software” and “commercial computer software documentation,” and, as such, the rights of U.S. Government End Users with respect to the Software and Manual are as set forth in this agreement, in accordance with FAR 12.212 or DFARS 227.7202-1, as applicable.

GOVERNING LAW: All rights and obligations of AKO and Buyer shall be governed for all purposes by the internal laws of the State of Connecticut, without reference to any choice of law rules, which would otherwise dictate the application of the laws of any other jurisdiction. The parties expressly disclaim the application of the United Nation Convention on Contracts for the International Sale of Goods. AKO and Buyer agree to submit to the exclusive jurisdiction of the state or federal courts having jurisdiction in Windsor, Connecticut, which shall hear any dispute claim, or controversy between AKO and Buyer.

Rev. November 2024

SOFTWARE LICENSE AND WARRANTY

A.K.O. INC. SOFTWARE LICENSE AGREEMENT AND LIMITED WARRANTY